- (1.) HEARD Ms. Alka Sarin, learned counsel for the appellant and Ms. Divya Sharma, learned counsel for the caveator/respondent. By consent, the matter is taken on board for final disposal.
(2.) THIS is an appeal under S.37 of the Arbitration and Conciliation Act, 1996 (for short "the Act") against the order dated 13th August, 2013 passed by the learned Additional District Judge, SAS Nagar, Mohali under S.34 of the Act dismissing the appellant's objections to the award dated 22nd March, 2011 passed by the sole arbitrator appointed by the appellant, who was its employee. The appellant is the principal contractor engaged in the business of construction of roads, highways, runways etc. throughout the country. The respondent is sub -contractor appointed to execute specified work under a written contract.
(3.) THE challenge is two fold; it is firstly contended that the sole arbitrator has misconducted the proceedings and has acted against all recognized canons of law by misreading documents and drawing inferences from them contrary to the contents of the documents. To this end it is argued that reliance has been placed on documents which the arbitrator himself had declared as dubious and unreliable during the course of the arbitration proceedings. The second ground of attack is that the arbitrator is biased and was removed from the service of the appellant -Company after making the award. The dispute relates to the Tepla -Kharar Project under contract agreement duly signed by the parties which contained the arbitration clause. On merits, the dispute relates to measurement, calculations and payments for work done. The award exhaustively settles the disputed claims between the parties in favour of the present respondent, the claimant. The other ancillary issue on merits revolves around whether work was stopped or terminated between contractor and the sub -contractor. The two material dates are 30th September 2008 and 21st April, 2009 and the hoary silence falling in between. The other material fact debated before me is the respondent's e -mail dated 18th November, 2008 which appends calculations of work done and the amounts found due and payable as an attachment. The arbitrator analyzed the case before him and arrived at conclusions which are best reflected in his own words and these are: - "1. The calculations attached to the e -mail Dt: 18 -11 -2008 The Petitioner has initially submitted along with his petition several calculations he has sent to The Respondent for payment up to 30 -09 -2008 and also after that up to 31 -12 -2008. He has also relied on the e -mail sent by Mr. Anand Kamboj, Senior Quantity Surveyor, Tepla Project addressed to CSS and rkjuneja on 18 -11 -2008. There was an uncertainty, initially, about the authenticity of the mail. The Respondents went to the extent to quote court judgements to state that 'a litigant approaching the justice with unclean hands is not eligible for remedies'. However, considering all the facts and documents, this Tribunal is convinced that the mail is genuine. If the sender has sent the mail to any body and marked a blinded copy (BCC) to another person, this person will receive the mail without anybody else aware of it. This BCC recipients name will not be shown when the mail is opened or printed. A deep and thorough search by computer specialists may bring the truth out. However, it was not required in this case since The Respondent at the later stage of the proceedings confirmed the existence of such a mail, but did not agree with the contents. This means that, the mail did exist, but objected to the earth work calculations attached to the mail, which is relied by the Petitioner all the time as The Respondents never shared the final calculations even though requested by the Petitioner several times. Under these circumstances, the existence of such an e -mail has to be concluded (accepted by The Respondent too) and that the e -mail is genuine. It need not be discarded or accepted entirely, but could be used as a good tool to arrive at the real quantities.";